Search form

Contemplating 'The Apocalypse': 269-269

Earlier today, I reported that John McCain's campaign is withdrawing from Michigan--and planning to send staffers and resources to Maine as a result. The reason: the Pine Tree State awards two of its four electoral votes by congressional district--meaning that if Barack Obama adds Iowa, New Mexico and Colorado to John Kerry's 2004 states (which is likely), but loses New Hampshire (which is possible), a McCain victory in Maine's rugged, northern Second Congressional District could break a 269-269 Electoral College tie and propel the Arizona senator to the presidency. Now comes word that Team Obama has opened another field office in Nebraska--the only other state to divvy up its electors by district. If Obama wins Nebraska's Second (which includes Omaha, the site of his new office) and McCain wins Maine's Second, then the two regions will cancel each other out--and we'll be right back where we started. From now on, Stumper will officially refer to this scenario--a 269-269 stalemate--as "The Apocalypse."

Recently, reader D.M. warned of The Apocalypse in an e-mail. "Looks like we could be 269 apiece," he or she wrote. "As bizarre as this seems, to me it is a real possibility now. I think an article about that scenario would be pretty interesting: 2000--Courts decide. 2008--House decides. I see riots and hysteria." Given the news out of Maine and Nebraska, I thought that now would be as good a time as any to explain exactly what The Apocalypse would look like--and venture a guess as to which candidate would emerge from the flaming wreckage alive.

If McCain and Obama tie--however they tie--the Constitution's 12th Amendment tasks the newly elected House of Representatives with picking the next president. Given that Democrats are expected to expand their current 235-199 majority by 12 to 16 seats, you'd expect Obama to win in a walk, right? Not quite. Giving individual members one vote each would skew the results toward big states like California and New York, so the House doesn't allow it. Instead, each state gets one vote, regardless of its population; to win a state's vote, a candidate must win the votes of a majority of its representatives. My home state of New Jersey, for example, has 13 congressmen; if seven vote for Obama and six for McCain, Obama pockets the Garden State's sole vote. He who amasses 26 state votes in the House wins the election.

At this point, Obamans--at least, crazy C-Span-watching Obamans--are probably saying, "Good. Right now, 27 states elect more Democrats than Republicans to the House. Only 21 House delegations boast Republican majorities. Obama wins!" Not so fast. Here's where things get a little even more complicated. For starters, those numbers may change after the election. This, at least, bodes pretty well for the Dems. According to Nate Silver of FiveThirtyEight.com--who recently created a detailed chart predicting the effect of November's results on the party composition of each House delegation--Democrats are expected to hold "somewhere between 25 and 28 delegations," while "Republicans look to have a much tougher time in getting to their magic number of 26." He continues: "if [Republicans] win all their states plus all the toss ups plus all the Democratic-leaning states, that still only gets them to 25." The problem for the Democrats, though, is that even controlling a majority of House delegations doesn't guarantee that Obama will win a majority of votes in the House's state-by-state tiebreaker. Why? Because individual House members aren't required to vote down party lines--and there may be strong political incentives for them not to. According to Silver's statistical analysis, for instance, 80 percent of tie outcomes--i.e., Obama wins Iowa, Colorado and New Mexico and loses New Hampshire--involve McCain winning the popular vote. If this happens, there will be a ton of public pressure on Democratic representatives to vote against their party. Still, one imagines that enough of them will be able to resist--perhaps by recalling a Supreme Court decision called Bush v. Gore--to swing the election to Obama.

What the men and women of the House may not be able to resist, however, is pressure within their own districts--i.e., the kind of pressure that could potentially end their careers. Over at the highly respected Cook Political Report, House analyst David Wasserman recently predicted how the chamber's 50 delegations would vote in November. He based his projections on two factors: a) each delegation's probable post-election composition and b) the local political pressures its members would face. What did he find? That "many more House Democrats would be sitting in McCain-carried districts than vice versa, and many would be under immense pressure to vote their constituents’ decision." Inevitably, McCain will have won a greater number of states than Obama, which means that to
win the White House, Obama will have to convince some Democrats to vote against their
states--or even their districts. An example: "if Democrat Ethan Berkowitz were to unseat longtime GOP Rep. Don Young in Alaska’s only House seat, Berkowitz"--who would have as much power in this process as California's 53-member delegation--"would almost certainly seal his own defeat in 2010 if he stuck with his party and voted against a ticket including the state’s popular GOP governor." As a result, Wasserman has divided the delegations into categories: Solid Democratic and Solid Republican; Leaning/Likely Democratic and Leaning/Likely Republican; and Toss Up. Here's the math, courtesy of Wasserman's boss, Charlie Cook:

In half of the states, control of the delegation looks firm. Fourteen seem solidly in the Democratic column in a House unit-vote election: California, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington. And 11 seem firmly Republican: Alabama, Georgia, Kentucky, Montana, Nebraska, Oklahoma, South Carolina, Texas, Utah, Virginia, and Wyoming. Another six states are leaning or are likely to vote Democratic (Arkansas, Colorado, Minnesota, Pennsylvania, West Virginia, and Wisconsin), bringing the Democratic count to 20. Likewise, five are leaning or are likely to go Republican (Florida, Idaho, Louisiana, Michigan, and Missouri), raising the GOP total to 16. But 14 states are best described as toss-ups.

As you can see, neither Obama nor McCain is anywhere near 26 votes at this point. On one hand, the fact that Obama would be first African-American president would make it politically unpalatable to deny him the job (see: superdelegates, Democratic primary). On the other, McCain will have likely won the popular vote--an achievement that many members will be reluctant to overturn, especially when neither candidate has a clear advantage in Congress. Toss another inconvenient truth into the mix--according to Cook, "four of the toss-up states in this scenario have even-numbered House delegations, meaning that intra-delegation deadlocks could reduce the number of states available to reach the magic number 26"--and you have a recipe for political paralysis. If neither McCain nor Obama gets 26 votes, neither McCain nor Obama gets to be president.

And that, ironically enough, is what could wind up snapping the stalemate. In the case of a tie, the Constitution assigns the House to choose a president. But it asks the Senate to choose a vice president. This is a much simpler process. In November, Democrats are expected to expand their 51-49 Senate majority by five to seven seats. Each senator gets one vote; a majority wins. Which means that the incoming Senate will undoubtedly select Joe Biden as vice president. This, in turn, would give House Democrats a ton of leverage. According to the 12th Amendment, Biden would become acting president if the House fails to choose an actual POTUS by Inauguration Day. So House Democrats could present House Republicans with a choice: Either way, the American people will have a Democratic president for the next four years, they could say. It's up to you whether you want it to be the one they voted for--Obama--or the one the Senate selected for them. In which case I suspect the GOP would get on board--although not without "riots and hysteria," as reader D.M. put it.

So here's hoping we avoid The Apocalypse.

P.S. Sadly, this whole mess is--or would have been--easily avoidable. The only reason it's even a possibility is because there are an even number of electors in the Electoral College. The only reason there are an even number of electors in the Electoral College is because there are 435 representatives in Congress (the Constitution requires the number of electors to equal the number of senators [100] plus the number of representatives [435], with an allotment for Washington, D.C. equal to the smallest state ([3] thrown in for good measure). And the only reason there are 435 representatives in Congress is because ... well, there is no reason. Public Law 62-5, passed by Congress on Aug. 8, 1911, set the number of House members at 435, and we've simply stuck to it ever since. In fact, the number was so arbitrary that the law included a provision for the addition of one seat each for Arizona and New Mexico when they became states, and the number of members actually increased to 437 (temporarily) when Alaska and Hawaii became states. So there's no reason why we can't have, say, 436 representatives in Congress. Sure, it would allow each party to win an even number of House seats. But which is worse? The possibility of splitting down the middle on an occasional vote--or The Apocalypse. We report, you decide.